Scottish Court of Session Decisions

This was a stated case under the Workmen's Compensation Act 1897, in the matter of a statutory arbitration between Mrs Menzies, widow of Archibald Menzies, and William M'Quibban, steam-joinery works, Perth. Mrs Menzies claimed compensation under the Act in respect of the death of her husband in consequence of injuries which he received in Mr M'Quibban's works on 20th March 1899.

The Sheriff-Substitute ( Napier) held that the injuries sustained by Menzies were caused by an accident which arose out of and in the course of his employment as a workman by M'Quibban, and were not attributable to serious and wilful misconduct on his part, and awarded compensation accordingly.

A case was stated by the Sheriff-Substitute to the First Division on the appeal of M'Quibban.

The case contained the following statement—“I hold the following facts to be proved or admitted. The appellant carries on a steam-joinery work, in one of the rooms of which there are several machines used in connection with his work for sawing or otherwise preparing wood for the joiners in his employment. These machines are set in motion or worked by endless belts which connect them with the steam-gearing on the roof. If one of these belts gets loose it is dangerous for anyone, even for a skilled workman, to attempt to replace it while the shaft of the gearing is in motion. On the morning of 20th March 1899 the belt connecting one of the appellant's machines at which William Miller, a machineman, was working, and of which he was in charge, got loose. William Miller, without having the shaft stopped, tried to replace the belt. While he was endeavouring to do so, Archibald Menzies, who was close by, and was at that moment engaged in sweeping up the chips which were lying on the floor, went, without being asked by Miller, to his assistance. Archibald Menzies took hold of what was called the single belt, that is, one of the sides of the belt, which, being endless, is stretched double between the machine and the gearing near the roof. His assistance, however, did not enable Miller to put the belt right. In consequence Miller asked him to catch hold of the double belt. Menzies then got a ladder, climbed up it, and caught hold of the double belt as requested, somewhere below the shaft of the gearing near the roof. While there his arm got entangled or caught in the belt. He was then dragged by the belt which was in motion up to the shaft, carried round it four times, and

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fatally injured. He died in Perth Infirmary shortly thereafter. Archibald Menzies who thus lost his life was on 20th March 1899, and had been since the second day of February preceding, in the employment of the appellant as a labourer at a wage of 20s. per week. The work he was engaged to perform was labourer's work. In particular, his duties were to carry wood from the machinemen to the joiners, and to clean up and sweep the floor of the machine room. On one occasion at least, however, he assisted at tailing, that is, pulling wood from a revolving saw. The only person who had authority to give orders to Menzies was the foreman Mr Soutar. He had never ordered Menzies to touch a machine or the belting, but he could have given such an order to Menzies if he desired. Without an order from the foreman Menzies had no right to interfere with the belting or the machines. In particular, Miller, though he had superior pay to Menzies, had no authority from the appellant to ask Menzies to assist him, nor had he any control over him.”

The question of law for the opinion of the Court was—“Whether the deceased Archibald Menzies being employed as a labourer and not as a skilled workman was injured by an accident arising out of and in the course of his employment by the appellant as a workman within the meaning of section 7 (1) of the Workmen's Compensation Act 1897 ?”

Argued for appellant—There were three material facts which appeared in the case. The deceased was engaged as a labourer and not as a skilled workman, he had no right to interfere with the belting, and he was ultroneously doing a piece of dangerous work. Accordingly, he was not doing his usual work, nor was he acting under the orders of one entitled to order him to do this work. That being so, the claim was only competent if the act could be said to have been done on an emergency, when it was the duty of anyone to interfere to protect his master's property. That was the principle applied in Reece v. Thomas [1899], 1 Q.B. 1015. There could not here be said to have been anything in the nature of an emergency, and accordingly there was no claim under the Act— Lowe v. Pearson [1899], 1 Q. B. 261; Smith v. Lancashire and Yorkshire Railway Company [1899], 1 Q.B. 141; Callaghan v. Maxwell, January 23, 1900, 37 S.L.R. 313; Martin v. Wards, June 15, 1887, 14 R. 814.

Argued for respondent— The act was clearly performed for the interest of the employer and not to gratify any impulse or whim. There was no exclusion of this particular act from the duties of the deceased ; it was not helping the other servant in his regular duties, but in correcting a defect. Even if it were held to be outside the scope of his regular work, he was engaged in furthering his employer's interests on the occurrence of an emergency. There was no allegation of serious and wilful misconduct, and accordingly the claim was not barred— Durham v. Brown Brothers & Company, December 13, 1898, 1 F. 279; M'Nicol v. Speirs, Gibb, & Company, February 24, 1889, 1 F. 604; Reece v. Thomas [1899], 1 Q.B. 1015.